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TMI Blog2024 (3) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... or suppression of facts by the importer. None of these aggravating factors which will make extended period of limitation invokable in the case were alleged, let alone, established against the importer either in the SCN or in the order in original or the impugned order. Therefore, extended period of limitation could not have been invoked in this case and the demand itself is hit by limitation. It cannot therefore be sustained. Since the demand is not sustainable on limitation itself, it is not necessary for us to examine the demand on merits. The demand needs to be set aside along with the consequential order holding the imported goods liable to confiscation and the penalty imposed on the appellant. Thus, the appeal is allowed and the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1962. (3) I impose penalty of Rs. 1,00,000/- (Rupees One Lakh only) upon M/s. Whirlpool of India Ltd (the Importer) under Section 114 AA of the Customs Act, 1962. (4) I impose penalty of Rs. 3,00,000/- (Rupees Three Lakh only) upon M/s. Super Trading Co. (the Exporter) under Section 114 AA of the Customs Act, 1962. (5) I impose penalty of Rs. 3,00,000/-(Rupees Three Lakh only) upon Shri Gurmeet Singh Kohli under Section 114AA of the Customs Act, 1962 for his acts of omissions commissions. (6) I impose penalty of Rs. 3,00,000/-(Rupees Three Lakh only) upon Shri Ramesh Gurbux Singh under Section 114AA of the Customs Act, 1962 for his acts of omissions commissions. 2. The appellant purchased Duty Entitlement Passbook Scheme DEPB Scrips issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted any fraud and had purchased the DEPB scrip for a consideration and had used it to clear the imported goods, the scrip was valid at the time of import. Any subsequent ab initio cancellation of the scrip should not be held against the appellant to either demand duty or to hold the that the imported goods were liable to confiscation or to impose penalty. He made elaborate submissions on the merits. 5. Learned consultant also submitted that the demand was issued invoking extended period of limitation under section 28. The extended period can be invoked only if the non-payment or short payment of duty is on account of (a) collusion; (b) wilful misstatement; or (c) suppression of facts by the importer. It is his submission that both the SCN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of limitation in the SCN is as follows: 16. From the above it appears that M/s Whirlpool of India Ltd., have purchased the DEPB authorization 0310687088 dated 20.03.2012, fraudulently obtained by the exporter through market brokers. The said M/s Whirlpool of India Ltd then utilized this DEPB authorization for Customs duty free imports totally valued at Rs. 11,71,096/- (Rupees Eleven lakhs seventy one thousand and ninety six only) under bill of entry no. 6676015 dated 28.04.2012 wherein the Customs duty foregone is Rs. 3,05,997/-. The said importer did not check the credentials of the exporter viz M/s Super Trading Co. in whose name the instant DEPB authorization was issued and which now stands cancelled, ab initio by the Joint Direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case, importer or the Noticee has not committed any crime as enumerated in section 28 and his intention was bona-fide throughout the transaction, accordingly, extended period cannot be invoked against him. 6.3. It is important to refer to the bare provisions at this juncture, in order to clarify the position in this regard. Relevant extracts are reproduced hereinbelow for immediate reference: 28.(1) Where any day has not been levied or not paid or has been short-levied or short-paid or erroneously refunded, or any interest payable has not been paid, paid- part or erroneously refunded, for any reason other than the reasons of collusion or any wilful mis-statement or suppression of facts- (a) The proper officer shall, within one year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hence, I am of the view that M/s. Whirlpool of India Ltd. Did not check the credentials of the exporter. Thus, the imports have become imports without payment of Customs duty and liable to be demanded and recovered from them under erstwhile section 28(1) of the Customs Act, 1962 along with applicable interest under section 28AA of the Act. As the exporter has fraudulently obtained the impugned DEPB authorisation on the basis of forged documents by resorting to mis-statement and mis-declaration, hence the extended period of five years is invokable under the provisions of proviso to erstwhile section 28(1) of the Customs Act 1962 for demanding the duty and interest thereof. ( emphasis supplied ) 11. The impugned order of the Commissioner (Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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